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Judicial restraint and accountability

At a time when judges are wont to invoke the power to punish for contempt of court not too infrequently, it was refreshing to hear the Chief Justice of the Madras High Court, Markandey Katju, call for judicial tolerance of public criticism. At a meeting to commemorate the first anniversary of the Madurai bench of the Madras High court, he declared that the people in a democracy had the right to criticise the judges if they failed to perform their functions properly. Describing judges as "proud servants of the people," he advised them not to take offence if the people criticised them. This approach, if adopted widely by the judges, could alter the nature of the contempt jurisdiction in two fundamental ways. In the first place, it would lead to judicial forbearance and provide a greater latitude for the public to exercise their democratic right to criticise the judgments, attitude, philosophy, and conduct of judges. Secondly, it would substitute the concept of judicial accountability for the notion of `dignity' of the judges and the judicial office. The offence of scandalising the court is based on the outdated notion of dignity that seeks to place judges on a higher footing than the ordinary people and other constitutional functionaries as well, and runs counter to the republican spirit of the Constitution. The concept of judicial accountability, on the other hand, would mandate a much greater tolerance of public criticism.

Over the last half a century and more, the judiciary has been the one institution that has, by and large, served the country well. The respect and authority it has commanded flow from this record and it is hardly in need of artificial props such as the power to punish for the offence of scandalising the court. The danger of this power is that it is "a vague and wandering jurisdiction with uncertain frontiers," as the Supreme Court put it. And nowhere was the uncertainty more glaring than in the two cases that Arundhati Roy faced — she was sentenced to jail for criticising the Supreme Court in one instance, while earlier the court had chosen to shrug off an equally sharp comment. If people are deterred from voicing their opinions strongly, they are inhibited even more from criticising the conduct of judges and bringing to light impropriety and corruption. For, if a person were then to be hauled up for scandalising the court, even truth would not be a defence. The National Commission to Review the Working of the Constitution headed by the former Chief Justice of India, M. N. Venkatachaliah, recommended that Article 19 (2) be amended to permit a defence of justification by truth in cases of contempt. That would be a marginal improvement over the present incongruous position where truth is shut out. However, the very basis of the offence of scandalising the court is flawed and runs counter to the values of a democratic society with a republican form of government. It is time that the offence ceased to exist.

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